Date: 21 Nov, 2019| Author: Fred Streiman

We have recently posted a number of blog articles on the struggles of the judicial system in dealing with access difficulties in the face of a stubborn parent who wishes to sabotage access between the other parent and child(ren).  In the recent very important Ontario Court of Appeal decision of A.M. vs. C.H. the three Judge panel weighed in on this matter.  On a personal note, Justice Zarnett has taken part in these decisions.  Justice Zarnett, despite having little to no experience in the family law world prior to his appointment directly to the Ontario Court of Appeal, has dived into the deep end.  Proof positive that an excess of brain cells can compensate for a lack of experience.  In this decision, the Court picked up the ball thrown by Justice Audet in Leelaratna and confirmed that the Court indeed does have the power in custody and access cases to make therapeutic Orders. 

A therapeutic order is one requiring a party or one of their children to participate in therapy.

The facts in A.M. vs C.H. dealt with a mother of a 14 year old whom she had successfully alienated from the father.  The child became one with the mother’s views and adamantly refused to have any contact with the father with no valid justification.  The Court is loathed to interfere, but does so from the precept of the best interest of the child.  The Court wants to enhance a child’s self-worth so that they appreciate that they are worthy of being loved and valued by both parents. 

In Leelaratna, the Court felt that the only appropriate course of action was to change custody from mother to father, temporarily bar the mother from having any access to the child and ordering that the father and child attend therapy together so that a relationship could be re-established. 

There were a number of legal hurdles and in A.M. vs. C.H. the Office of the Children’s Lawyer (“OCL”) became involved.  The OCL advocating for the child’s wishes, argued that the Trial Judge’s order (being appealed to the Ontario Court of Appeal) would have catastrophic consequences in separating the child from his mother and failing to give heed to the child’s wishes.  The OCL further argued that there was a lack of expert evidence of the effect of such a dramatic step.  Lastly, the OCL argued that in the absence of the child’s consent, the Ontario Health Care Consents Act was an absolute bar.  That Act stipulates that a patient’s consent is required before treatment can be provided. 

The Court of Appeal bolded ahead and said nonsense.  The Court started by stating that a large and liberal interpretation of its powers allow it to make a wide variety of Orders with respect to parenting, including therapeutic Orders.  The Court of Appeal repeated that experts’ reports at times can be very valuable, but are not necessary for the Court to make decisions.  The final decision always rests with the Court to do, based upon the evidence before it, to make an Order in the best interest of the child. 

The Court noted “some expert assessment may be very helpful to a Trial Judge, but they are not a prerequisite to making the Order the Judge thinks is in the child’s best interest based on all of the evidence at the end of the Trial.  In fact, Trial Judges are obliged to make an Order regardless of whether expert evidence is adduced.  There is also no legal requirement for therapeutic support when custody reversals are contemplated, although it might be helpful in some cases.  Here it would be of doubtful utility given the mother’s refusal to participate in that process”.

The bottom line is that there are judicial remedies blunt and almost nuclear in their severity.  What perhaps is not clear to the casual reader is the many tens of thousands if not hundreds of thousands dollars that had been spent by the warring parties to get to this point.  I have no doubt that for senior counsel to be involved, at least a quarter of a million dollars would have had to been expended to get to the point for the Court of Appeal to make the decision that it did.  Yet again, this author harps upon his own prejudice that these type of custodial fights are almost always a symptom of at least one of the parents having their own mental health challenges.   

This is an extremely important case as it deals with numerous and weighty legal issues such as whether or not a 14 year old is old enough to refuse to provide their consent under the Health Care Consent Act and accordingly, refuses to participate in therapeutic treatment.  The Ontario Court of Appeal felt that the child was so immature that they were not capable of giving consent.  This tale does not end here and a subsequent blog ACCESS DIFFICULTIES- WHEN THE CHILD REFUSES TO SEE A PARENT, which I strongly recommend my readers look at as this legal drama takes a very unhappy turn.